Appeal of VINCENT J. MALFETANO from action of the Board of Education of the City School District of the City of New Rochelle regarding a school district election.

Decision No. 16,757

(May 12, 2015)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Sara M. Richmond, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner challenges action by the Board of Education of the City School District of the City of New Rochelle (“respondent”) regarding the May 2014 election of board members and seeks to overturn the results of the election.  The appeal must be dismissed.

The record indicates that in April 2014, Dr. Salvador Fernandez, Ricardo Monzon and Jeffrey Hastie submitted nominating petitions to respondent’s clerk and secretary (“clerk”) to run for election for two open positions on the board at the May 20, 2014 election.  On the petitions, Dr. Fernandez submitted 220 signatures, Mr. Monzon submitted 190 signatures and Mr. Hastie submitted 202 signatures.  In her June 2, 2014 affidavit, the clerk states that all three candidates submitted “substantially more nominating signatures” than required.  She further states that after reviewing each nominating petition and the name of each nominator, she concluded that all three candidates were duly qualified to stand for election.

On May 7, 2014, at respondent’s clerk’s office, petitioner inspected the nominating petitions, the poll lists from the previous year and the preliminary voter registration list as of March 11, 2014, which had been received from the Westchester County Board of Elections.

By email dated May 11, 2014 to respondent’s clerk, petitioner requested the deadline for filing objections to nominating petitions.  In her May 12, 2014 response, respondent’s clerk advised petitioner that the day of the election/budget vote was the deadline to challenge a signature on a nominating petition.  By email dated May 15, 2015, respondent’s clerk advised petitioner to consult an attorney and offered suggestions regarding the information that should be included in petitioner’s challenges to the nominating petitions.

On May 14, 2014, petitioner submitted documentation to respondent’s clerk challenging Mr. Monzon’s nominating petition.  In her May 16, 2014 response, respondent’s clerk advised petitioner that, after a review of the nominating petition, it was her conclusion that Mr. Monzon had in excess of 100 valid nominating signatures and that his nomination would stand.

On May 16, 2014, petitioner submitted documentation to respondent’s clerk challenging Dr. Fernandez’s nominating petition and on May 20, 2014, petitioner submitted supplemental objections to both Dr. Fernandez’s and Mr. Monzon’s nominating petitions.

By email dated May 19, 2014 to respondent’s interim superintendent, petitioner indicated that he was appealing a “constructive denial” of his challenges to the nominating petition signatures filed by Dr. Fernandez and requested an immediate response.  The record indicates that petitioner’s email was forwarded to respondent’s attorney, who responded to petitioner indicating that there was “no denial with respect to Candidate Fernandez, whether constructive or otherwise,” and that, due to time constraints, petitioner’s objections to Dr. Fernandez’s nominating petition would not be reviewed until after the election.  Respondent’s attorney explained that none of the three candidates could be prejudiced by a post-election decision on the challenges to Dr. Fernandez’s nominating petition.

On May 19, 2014 at 11:14 p.m., respondent’s clerk received an email from Mr. Robert A. Cox indicating that he had initiated a write-in campaign and requesting that ballots be available at polling places.

The election was held on May 20, 2014.  Dr. Fernandez received 1,540 votes, Mr. Hastie received 1,368 and Mr. Monzon received 1,227.  Mr. Cox received between 25 and 39 write-in votes.

On May 27, 2014, respondent’s clerk responded to petitioner’s objections to Dr. Fernandez’s nominating petition. The clerk indicated that, after a review of the nominating petition for Dr. Fernandez against the most recent voter registration lists received from the Westchester County Board of Elections, she concluded that Dr. Fernandez had in excess of 100 valid nominating signatures and that his nomination would stand.

On May 28, 2014, respondent’s clerk responded to petitioner’s supplemental challenges to Mr. Monzon’s nominating petition indicating that, after a review of the nominating petition for Mr. Monzon against the most recent voter registration lists received from the Westchester County Board of Elections, she concluded that Mr. Monzon had in excess of 100 valid nominating signatures and that his nomination would stand.

This appeal ensued.  Petitioner’s request for interim relief was denied on June 11, 2014.

Petitioner asserts that the failure of respondent’s clerk to disqualify two of the candidates for two board seats materially affected the outcome of the election.  He further asserts that there was no established procedure to evaluate signatures and voter information on nominating petitions, and variously alleges that the clerk erred in accepting the nominating petitions submitted by Dr. Fernandez and Mr. Monzon because they do not match voter registration records on file with the Westchester County Board of Elections, contain “catastrophic defects” and are permeated by fraud.  He requests a determination that Dr. Fernandez’s and Mr. Monzon’s candidacies are “void,” that the votes for Dr. Fernandez and Mr. Monzon be disregarded, and that the remaining “two highest voter-getters be seated on the Board.”

Respondent contends that the appeal must be dismissed for failure to properly join necessary parties and that petitioner has not met his burden of proving that the alleged improprieties are of such a substantial nature as to warrant overturning the result of the election.

The appeal must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Section 275.8(d) of the Commissioner’s regulations provides in pertinent part: “If an appeal involves the validity of a school district meeting or election ... a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent” (emphasis added)(see Appeal of Schultz, 48 Ed Dept Rep 70, Decision No. 15,796; Appeal of Duffy, 47 id. 86, Decision No. 15,634).

Petitioner specifically seeks to unseat Dr. Fernandez.  Thus, he is a necessary party to this appeal.  Petitioner also challenges the validity of the nominating petitions submitted for Dr. Fernandez and Mr. Monzon as candidates in the election.  Consequently, Mr. Monzon is also a necessary party.

Although both Dr. Fernandez and Mr. Monzon were personally served with a copy of the petition, they are not named in the caption of the petition and there is no notification to them in the notice of petition that they must personally appear and respond to the allegations in the petition, and they did not in fact appear in this appeal.  Accordingly, Dr. Fernandez and Mr. Monzon were not properly joined in this appeal.  Petitioner’s failure to do so requires dismissal (see Appeal of Race, Ed Dept Rep, Decision No. 16,567; Appeal of Caraballo, 52 Ed Dept Rep, Decision No. 16,477; Appeal of Destino, 52 Ed Dept Rep, Decision No. 16,461).

In view of the above, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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